On Point: 35. Search & Seizure

State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118
For Payano-Roman: Timothy A. Provis

Issue: Whether the administration to an arrestee of a laxative at a hospital was under 4th amendment constraints because of the involvement of the police (including keeping the defendant handcuffed in the hospital room; police administration of the laxative; their palpable goal to recover a controlled substance that the defendant had swallowed).

State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118
For Payano-Roman: Timothy A. Provis

Issue/Holding:

¶17      … Private searches are not subject to the Fourth Amendment’s protections because the Fourth Amendment applies only to government action. State v. Rogers, 148 Wis.  2d 243, 246, 435 N.W.2d 275 (Ct. App. 1988) ….¶18      The court of appeals in Rogers stated three requirements that must be met for a search to be a private search:

(1) the police may not initiate,

State v. Bill P. Marquardt, 2005 WI 157, on certification; prior history: 2001 WI App 219
For Marquardt: John Brinckman; Patricia A. Fitzgerald

Issue/Holding: The good-faith exception is inapplicable when indicia of probable cause are so lacking as to render official belief in its existence unreasonable. This inquiry is distinct from the question of whether the supporting facts are clearly insufficient.

¶33      Under Leon‘s rationale,

State v. Bill P. Marquardt, 2005 WI 157, on certification; prior history: 2001 WI App 219
For Marquardt: John Brinckman; Patricia A. Fitzgerald

Issue/Holding: The search warrant was supported by sufficient “indicia of probable cause” to trigger the good-faith exception, including the following: Marquardt had not been seen for two days following his mother’s homicide, raising suspicion about his absence; the victim was covered in a blanket,

State v. Michael D. Sykes, 2005 WI 48, affirming unpublished decision of court of appeals
For Sykes: Jeffrey J. De La Rosa

Issue/Holding: Where the police had probable cause to arrest for criminal trespass, they did not have to subjectively intend to arrest the person for that offense in order to perform a search incident to arrest. And, though the search must be “contemporaneous” with the arrest (relatedly: probable cause must exist independent of the fruits of the search),

State v. Martin D. Triplett, 2005 WI App 255
For Triplett: Syovata Edari, SPD, Milwaukee Appellate / Milwaukee Trial

Issue: Whether the officer’s inability to perform an “effective” patdown permitted a further intrusion that led to the discovery of contraband.

Holding:

¶12      Our supreme court has not, however, addressed the scope of a permissibleTerry search where an effective patdown is impossible.

State v. Bill P. Marquardt, 2005 WI 157, on certification; prior history: 2001 WI App 219
For Marquardt: John Brinckman; Patricia A. Fitzgerald

Issue/Holding: The “significant investigation” requirement of State v. Eason, 2001 WI 98 is satisfied:

¶52      Investigator Price estimated that over the course of March 13 and 14, a total of 20 law enforcement officers had become involved in the investigation of the homicide.

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue: Whether Stank was entitled to an evidentiary hearing, relative to the credibility of the informant, in support of his attack on probable cause for the search warrant.

Holding:

¶30      We hold that Stank was not entitled to such a hearing. In Morales v. State, 44 Wis.

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue: Whether a time lag of two months between the informant’s observations and the application for the search warrant rendered the warrant stale.

Holding: Passage of time dose not alone render probable cause stale; the warrant-issuing court may consider various factors, ¶33 (citing State v. Multaler,

State v. Troy Curtis Christensen, 2005 WI App 203
For Christensen: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Given proper notice that calls are subject to recording or monitoring, WESCL allows intercepts of outgoing jail calls notwithstanding the potential for capturing attorney-client calls. (State v. Deonte D. Riley, 2005 WI App 203, ¶13 n. 5, which left this issue open, thereby extended.)

There was no indication that an attorney-client call had in fact been intercepted,